NRW v The Queen - [2008] NSWCCA 318

New South Wales
Court of Criminal Appeal

CITATION: NRW v R [2008] NSWCCA 318

HEARING DATE(S): 11 December 2008

JUDGMENT DATE:
18 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Howie J at 28

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Multiple sexual offences on two stepchildren and one natural child - Grave crimes - No challenge to overall sentence - Whether sentencing judge impliedly intended to set lesser non-parole period by reason of finding of special circumstances - Purpose to provide significant period of possible supervision on parole - 5 year balance term ample for such purpose

LEGISLATION CITED: s 44(2) Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

PARTIES: NRW - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/13366

COUNSEL: A P Cook SC - Applicant
L Wells - Respondent/Crown

SOLICITORS: S O'Connor - Legal Aid
S Kavanagh - Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/41/0164

LOWER COURT JUDICIAL OFFICER: Conlon DCJ

LOWER COURT DATE OF DECISION: 15/02/08

CCA 2007/13366

McCLELLAN CJ at CL
GROVE J
HOWIE J
18 December 2008

NRW v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Grove J.

2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Conlon DCJ in Wollongong District Court. The applicant was arrested on 7 February 2007 and charged with offences which I will shortly detail. He has been in custody since that date. He pleaded guilty to charges in Wollongong Local Court on 18 July 2007, which his Honour found was the earliest opportunity so to do. The three victims were therefore spared the potential ordeal of giving evidence about what they had suffered.

3 The applicant was born on 26 July 1963 and is now aged 45. In about 1987 he formed a relationship with a woman (M) who already had a son (JC) born on 9 June 1981 and a daughter (MC) born 4 October 1983. The new relationship resulted in the birth of two further children, a daughter (CW) born on 1 November 1987 and a son (JW) born on 6 April 1989.

4 It is apparent that the household was other than a zone of contentment. His Honour found that the applicant drank alcohol to excess and was a heavy user of cannabis. He was physically abusive to M and physically and emotionally abusive to the children. He was for most of the time unemployed but M worked at two jobs, in a local chicken shop and as a cleaner. M’s employments required her to work into the evenings and more often than not the children were in the care and custody of the applicant in those hours.

5 Upon arrest the applicant, in accordance with his entitlement, declined to be interviewed by police. He chose not to give evidence in the sentencing proceedings. An affidavit by him was filed but he did not refer to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NRW v The Queen

Details

AGLC: NRW v The Queen [2008] NSWCCA 318
Case: [2008] NSWCCA 318
Decision Date: 18 December 2008

CaseChat Overview and Summary

In the High Court of Australia, the matter of NRW v The Queen was presented. The appellant, NRW, was convicted of multiple sexual offences committed against his two stepchildren and one natural child. The case involved an appeal against the sentence imposed by the trial judge. NRW did not challenge the overall sentence but sought clarification on the non-parole period, arguing that the sentencing judge intended to set a lesser non-parole period due to a finding of special circumstances. The primary legal issue was whether the sentencing judge's findings of special circumstances resulted in an implied intention to set a lesser non-parole period. The Court was required to determine if the trial judge's findings of special circumstances influenced the non-parole period, and if so, whether the period was appropriate.

The High Court considered whether the trial judge's findings of special circumstances were intended to influence the non-parole period. The Court held that the trial judge's findings did not result in an implied intention to set a lesser non-parole period. The Court emphasised that the purpose of the sentence was to provide a significant period of possible supervision on parole, and a five-year balance term was ample for such a purpose. The Court concluded that the non-parole period set by the sentencing judge was appropriate and did not require alteration. The Court found that the sentencing judge's findings of special circumstances did not imply a lesser non-parole period, and the sentence imposed was adequate for the purpose of providing significant supervision on parole.

The Court dismissed the appeal and upheld the sentence imposed by the trial judge. The non-parole period and the overall sentence were affirmed, with no changes made to the terms of the sentence. The Court found that the five-year balance term was sufficient to allow for the required period of supervision on parole, and the trial judge's findings of special circumstances did not imply a lesser non-parole period. The Court's decision clarified the legal position regarding the interpretation of findings of special circumstances and their impact on the non-parole period. The sentence imposed by the trial judge was affirmed, and the appeal was dismissed.

Orders